Cite as State v. Jumel, 13 La. 399 (1858)
STATE V. ALLEN JUMEL.
[syllabus]
The statute against carrying concealed weapons does not
infringe the constitutional right of the people to keep and bear
arms - it is a measure of police prohibiting only a particular mode
of bearing arms, which is found dangerous to the peace of society.
A prosecution for the "offence" is only barred by the lapse of
one year.
Appeal from the district court of the parish of Ouachita,
Richardson, J.
F.R. Stubbs, District Attorney, for the State. Baker & Harris,
for appellant.
Spofford, J. The defendant and appellant was indicted on the
29th April, 1856 for having, on September, 1855, carried a weapon
concealed about his person, an offence punishable under the Act of
March 14th, 1855, sec. 115, (Sess. Acts, p. 158,) by a fine not
less than $250, nor more than $500, or imprisonment for one month.
I. It is urged that the law is repugnant to that provision
of the Constitution of the United States which declares, that the
right of the people to keep and bear arms shall not be infringed.
Amendments, art. 2.
The statute in question does not infringe the right of the
people to keep or bear arms. It is a measure of police, prohibiting
only a particular mode of arms which is found dangerous to the
peace of society. See State v. Chandler, 5 An., 489 ; State v.
Smith, 11 An., 633.
II. We have never considered the Act of March 14th, 1855,
"relative to crimes and offences," as within the prohibition of the
Article 115 of our State Constitution.
III. The defendant in the court below moved to quash the
indictment, on the ground that it was not found until more than six
months after the day the offence was alleged to have been
committed, and that the prosecution was, therefore, barred by
limitation.
The law provides that no person "shall be prosecuted for any
fine or forfeiture, under any law of this State, unless the
prosecution for the same" (i. e. the fine or forfeiture) "shall be
instituted within six months from the time of incurring such fine
or forfeiture; nothing herein contained. shall extend to any person
absconding or fleeing from justice." acts 1855, p. 151, sec. 10.
The limitation of six months does not apply to the present
indictment, because it is not a prosecution to recover a fine or
forfeiture; it is a prosecution for an "offence" barred only by the
lapse of one year, according to the first clause of section 10,
just referred to. The object of the proceeding was not to recover
any special " fine or forfeiture," but to convict and punish an
offender. The Judge was empowered to punish the accused, upon
conviction, either by fine, or imprisonment. The Grand Jury and
the District Attorney had no election as to the penalty, and
therefore, could not, and did not prosecute the party for the
recovery of a fine or forfeiture. The fact that the Judge, after
the accused was found guilty of the offence charged, chose to
sentence him to pay a fine, under the discretional power vested in
him by statute, did not have such a retroactive effect as to change
the character of the proceeding from that of a prosecution for a
offence which, had the Judge thought proper, might have been
punished by imprisonment alone, into a claim for a fine merely.
IV. The Judge sentenced the prisoner to pay a fine of $310,
and in default of payment thereof, to be imprisoned for sixty days.
The accused complains that in the last part of the sentence the
Judge transcended his power, because the statute only authorizes
him to order an imprisonment for one month. That would be correct
if the Judge had only ordered the party to be punished by
imprisonment.
But the statute provides two modes of punishment, the one
imprisonment simply, and the other a fine not to be less than $250,
nor greater than $500. If the Judge sentences the party convicted
to imprisonment, as the sole penalty of his guilt, the extreme term
is one month, and then no fine can be imposed. But he may prefer to
sentence him to pay the fine authorized by the statute, and then he
may compel the person convicted to obey this sentence, by holding
him in custody until he does obey, or is discharged by law. The
object of imprisonment in such a case, is not to punish the party
for the offence of which he was convicted, but to compel him to
execute the sentence of the court by payment of the fine imposed by
law, or to punish him for not obeying the sentence of the court.
Such a case is specially provided for by law. "Every person being
adjudged to pay a fine, shall, in default of payment or recovery
thereof, be sentenced to be imprisoned for a period not exceeding
one year." See Act "relative to criminal proceedings," sec. 4,
(Sess. Acts, 1855, p, 151.
Judgment affirmed, with costs.